doc 223; govt opposition to defendant's motion to dismiss 031414

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA )

) v. ) Crim. No.13-10200-GAO

) DZHOKHAR A. TSARNAEV, )

Defendant )

GOVERNMENT=S OPPOSITION TO

DEFENDANT=S MOTION TO DISMISS

The United States of America, by and through its

undersigned counsel, respectfully opposes defendant=s motion to

dismiss.

INTRODUCTION Defendant, Dzhokhar Tsarnaev (Tsarnaev), has moved to

dismiss numerous counts of the indictment that he characterizes

as surplus. He claims that those counts are a tactical

measure designed to put a thumb on the scales of justice in

favor of the death penalty. He also argues that those counts

violate the Double Jeopardy Clause of the U.S. Constitution. As

shown below, defendants characterization of the counts as a

tactical measure is nonsense, and his Double Jeopardy argument

is wholly without merit.

The number of charges in the indictment reflects the number

of crimes Tsarnaev committed - nothing more. The evidence will

Case 1:13-cr-10200-GAO Document 223 Filed 03/14/14 Page 1 of 25

2

show that Tsarnaev committed deadly crimes of mass destruction,

deadly crimes of terrorism, deadly crimes of bombing, and

multiple acts of murder. Having done so, he can hardly blame

the government for the number of capital charges in the

indictment. If he is prejudiced by the number of capital

charges in the Indictment, it is prejudice he has brought upon

himself. The government is not obligated to limit the number of

charges simply to spare Tsarnaev the consequences of his own

actions.

The charges in the Indictment do not violate the Double

Jeopardy Clause. In an effort to combat armed violent crime in

general and terrorism in particular, Congress has enacted many

statutes over the years to address every facet of the problem

and ensure that offenders do not escape punishment. Despite

overlap among the statutes, it is clear that Congress intended

to authorize multiple penalties for offenders who violate more

than one statute. The Supreme Court has long held that Congress

may authorize as many penalties as it deems necessary to address

a particular evil. So long as Congress has authorized them,

multiple penalties, even for violations arising from the same

underlying transaction, do not violate the Double Jeopardy

clause.


3

ARGUMENT Counts 1, 2, 4, 6, 7, 9, 11, 12, and 14 (the Marathon bombing counts) There is no merit to Tsarnaevs argument that Congress did

not authorize multiple punishments for violations of 18 U.S.C.

2332a, 2332f, and 844(i) that arise from the same act or

transaction. The applicable rule is that, where the same act

or transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there

are two offenses or only one, is whether each provision requires

proof of a fact which the other does not. Blockburger v.

United States, 284 U.S. 299, 304 (1932). The Court adopted this

test over 100 years ago and has used it ever since as the nearly

exclusive method for determining whether Congress intended to

authorize multiple punishments for multiple offenses arising

from the same act. See Grady v. Corbin, 495 U.S. 508, 517 & n.8

(1990). (The only exceptions are those rare cases where

Congress expressly authorizes or forbids multiple punishments.)

Tsarnaev concedes that sections 2332a, 2332f, and 844(i) each

requires proof of a fact that the others do not. See Deft. Mot.

at 10-11. That concession effectively ends the inquiry and

disposes of Tsarnaevs argument. Cf. United States v. Mann, 701


4

F.3d 274, 285 (8th Cir. 2012) (holding that section 2332a and

844(i) charges arising from the same underlying facts were not

multiplicitous).

Tsarnaev attempts to minimize the differences among the

statutes by referring to their differing elements as mere

jurisdictional hooks, see Deft. Mot. at 11, but he cannot

diminish the legal significance of particular elements simply by

disparaging them. Although Tsarnaev may consider jurisdictional

elements less important than other elements, it would hardly be

appropriate to impute the same low opinion of federal

jurisdictional requirements to Congress. Tsarnaev also contends

that the section 2332a, 2332f, and 844(i) violations in this

case rest on the same factual elements, Deft. Mot. at 10, but

that has no legal significance for Double Jeopardy analysis.

The Blockburger test emphasizes the elements of the two crimes.

If each requires proof of a fact that the other does not, the

Blockburger test is satisfied, notwithstanding a substantial

overlap in the proof offered to establish the crimes. Brown

v. Ohio, 432 U.S. 161, 166 (1977) (quoting Iannelli v. United

States, 420 U.S. 770, 785 n.17 (1975)). Indeed, Blockburger

itself held that two of the violations charged in that case were

not multiplicitous even though they were based on the exact same

act (a single sale of drugs). See 284 U.S. 303-304.


5

In any event, Tsarnaev simply ignores, or dismisses, other

important differences among the statutes. Use of a weapon of

mass destruction is an element of section 2332a but not of the

other two statutes. Committing violence against a place of

public use is a necessary element of section 2332f but not of

the other two. And damaging or destroying a building is a

necessary element of section 844, whereas the other two statutes

do not require the occurrence of any damage or destruction at

all.

Tsarnaev is simply wrong in arguing that, to the extent

section 2332f was designed to supplement other terrorist

bombing statutes and close any loopholes they might contain,

it was necessarily intended to provide an alternative, not an

additional, means of punishing bombings. Deft. Mot. at 12.

That argument is foreclosed by Gore v. United States, 357 U.S.

386 (1958). Gore involved a single sale of drugs that violated

three separate statutes. Id. at 398. The defendant argued that

because those statutes reflected a unitary congressional

purpose to outlaw nonmedicinal sales of narcotics, Congress

must also have intended to punish [an offender] only as for a

single offense when these multiple infractions are committed

through a single sale. Id. at 399. Justice Frankfurter,

writing for the Court, rejected that argument, explaining:


6

We agree with the starting point, but it leads us to the opposite conclusion. Of course the various enactments by Congress extending over nearly half a century constitute a network of provisions, steadily tightened and enlarged, for grappling with a powerful, subtle and elusive enemy. If the legislation reveals anything, it reveals the determination of Congress to turn the screw of the criminal machinery - detection, prosecution and punishment - tighter and tighter. The three penal laws for which petitioner was convicted have different origins both in time and in design. . . . It seems more daring than convincing to suggest that three different enactments, each relating to a separate way of closing in on illicit distribution of narcotics, passed at three different periods, for each of which a separate punishment was declared by Congress, somehow or other ought to have carried with them an implied indication by Congress that if all these three different restrictions were disregarded but, forsooth, in the course of one transaction, the defendant should be treated as though he committed only one of these offenses.

Id. at 390-391.

Gores reasoning applies here with equal force. Like

narcotics traffickers, terrorists are a powerful, subtle and

elusive enemy that Congress has sought to combat with an

increasing variety of enactments. And, like the statutes in

Gore, the ones at issue here have different origins in time and

in design. Section 844, which punishes destruction of property

through explosives or fire, was enacted as part of the Organized

Crime Control Act of 1970. Section 2332a, which takes aim at


7

weapons of mass destruction, was enacted as part of the Violent

Crime Control and Law Enforcement Act of 1994. And section

2332f, enacted in 2002, was intended specifically to

criminalize the act of terrorist bombing aimed at public or

governmental facilities, or public transportation or

infrastructure facilities. H. Rep. No. 307, 107th Cong., 1st

Sess. 7 (2001). These statutes, like the ones in Gore, are

properly understood as separate way[s] of closing in on

terrorism. And like the drug trafficker in Gore, whose single

sale of drugs violated three different drug laws, Tsarnaevs

conduct was sufficiently broad and far-reaching to violate three

separate violent crime statutes. The logic and holding of Gore

compel the conclusion that Congress intended to punish such

conduct with three separate penalties.

Finally, Tsarnaev argues that the government has

overload[ed] him with charges, Deft. Mot. at 9, suggesting

that his conduct simply does not warrant the number of charges

in the indictment. We disagree. Each of the charged crimes

focuses on a different harm and reflects an important dimension

of Tsarnaevs alleged conduct. A weapon of mass destruction is

unusually dangerous and frightening regardless of its target

(which could be an isolated individual). An attack on a place

of public use, in contrast, is calculated to sow terror in the


8

general population regardless of the weapon used in the attack.

And the malicious destruction of property adds a dimension of

fear and suffering to victims even if the weapon is ordinary and

the destroyed property is non-public. The charges in this case

do no more than fairly and accurate reflect the acts that gave

rise to them.

Counts 3, 5, 8, 10, 13, 15, 16, 17, 18 (the murders of Krystle Marie Campbell, Lingzi Lu, Martin Richard, and Sean Collier) Tsarnaev contends that criminals who commit multiple

violent crimes while armed are subject to only one enhanced

penalty under section 924(c) if the charges are based upon the

same, simultaneous conduct. Deft. Mot. at 5. In other words,

he argues that each section 924(c) charge must be based not only

on a separate violent crime but on a separate use of a firearm

corresponding to that crime. (That is what it means as a

practical matter to say that section 924(c) charges may not be

based upon the same, simultaneous conduct.) Tsarnaevs

contention is contrary to the language and purpose of the

statute and to the overwhelming weight of case law. It should

therefore be rejected.

Title 18, United States Code, Section 924(c) provides in

relevant part:

[A]ny person who, during and in relation to


9

any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall [be subject to an enhanced penalty].

Section 924(c)s purpose is to impose an enhanced penalty on

criminals who arm themselves when committing violent crimes.

See United States v. Pena-Lora, 225 F.3d 17, 32 (1st Cir. 1990)

(Congress enacted subsection 924(c) principally as a sentencing

enhancement mechanism for application to persons convicted of

underlying crimes of violence committed through the use of

firearms.). In recognition of that purpose, virtually every

Circuit has held that the number of section 924(c) violations an

individual commits depends not on the number of uses he makes of

a firearm while committing a crime (since he is armed either

way), but rather on the number of violent crimes he commits

while armed. See United States v. Rentz, 735 F.3d 1245, 1249

(10th Cir. 2013) (Congress intended to punish an armed offender

with a separate section 924(c) count for each underlying violent

crime.); United States. v. Rodriguez, 525 F.3d 85, 111-112 (1st

Cir. 2008) (same) (collecting similar cases from the D.C., 2nd,

5th, 6th, 7th, 9th, 10th, and 11th Circuits); United States v. Diaz,

592 F.3d 467, 471-475 (3rd Cir. 2010); United States v. Khan, 461

F.3d 477, 493-94 (4th Cir. 2006); see also United States v.


10

Boidi, 2006 WL 456004, at *3 (D. Mass 2006) (O=Toole, J.).

Because these decisions hold that the unit of prosecution for

section 924(c) offenses is the predicate crime rather than a

particular use of the firearm, they are fundamentally at odds

with Tsarnaevs proposed construction of the statute.

The statutes plain language supports the conclusion that

each armed violent crime gives rise to a separate 924(c)

violation even if there is only a single use of the firearm.

That language defines a section 924(c) offense as the use of a

firearm during and in relation to any crime of violence or drug

trafficking crime . . . for which the person may be prosecuted

in a court of the United States (emphasis added). Congress

surely understood that many armed offenders commit more than one

violent crime in the course of a single criminal episode; yet it

used language that, on its face, mandates an enhanced punishment

for each of those crimes without anywhere suggesting that each

crime must involve a separate use of the firearm. It would be

wrong to read a limitation into the statute that Congress chose

not to include. See Dean v. United States, 556 U.S. 568, 571

(2009) (holding that enhanced penalty under section 924(c) in

cases where the firearm is discharged applies even if the

firearm goes off accidentally, because the statute does not

require that the discharge be done knowingly or intentionally,


11

or otherwise contain words of limitation, [and] . . . we

ordinarily resist reading words or elements into a statute that

do not appear on its face) (internal quotation marks and

citation omitted).

A comparison between section 924(c) and its sister

provision, section 924(e), further illuminates Congresss

intent. Section 924(e) mandates an enhanced penalty for certain

gun offenders who have three previous convictions . . . for a

violent felony or a serious drug offense, but only if those

three prior offenses were committed on occasions different from

one another. All courts agree that this means the three

previous convictions must represent three episodes' of

felonious criminal activity that are distinct in time. United

States v. Towne, 870 F.2d 880, 889 (2nd Cir.)(collecting cases),

cert. denied, 490 U.S. 1101 (1989).

Section 924(e) demonstrates that when Congress wants to

ensure that sentence-enhancing predicates are not based on the

same, simultaneous conduct, it knows how to do so, and does so

expressly. The fact that sections 924(c) and 924(e) are

subsections of the same statute compels the conclusion that

Congress deliberately omitted from section 924(c) any

requirement that the predicate offenses arise from separate

criminal episodes. Russello v. United States, 464 U.S. 16, 23


12

(1983) ([W]here Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.)

(internal quotation marks omitted).

Tsarnaevs proposed construction of the statute would also

undermine its purpose, which, according to the bills sponsor,

was to guarantee that armed offenders serve a prison sentence.

See 114 Cong.Rec. 22231 (daily ed. July 19, 1968) (section

924(c)s purpose is to persuade the man who is tempted to

commit a Federal felony to leave his gun at home. Any such

person should understand that if he uses his gun and is caught

and convicted, he is going to jail.) (statement of Rep. Poff);

see also id. at 22237 ([A]ny person who commits a crime and

uses a gun will know that he cannot get out of serving a penalty

in jail) (statement of Rep. Rogers). Tsarnaevs argument that

a defendant who commits multiple armed violent crimes in a

single criminal episode may be charged with only one section

924(c) count based on only one of those violent crimes would

lessen the likelihood of conviction and thus undermine the

guarantee of prison time. It makes no sense to conclude that

Congress intended its words to be applied in a way that would

undermine its stated aim.


13

The majority of Circuits have interpreted section 924(c)

consistent with its language and purpose and have rejected

Tsarnaevs reading of the statute. See United States v. Mejia,

545 F.3d 179, 183-84, (2nd Cir. 2008) (upholding two section

924(c) convictions based on a single drive-by shooting that

injured two victims and was charged as two assaults); United

States v. Casiano, 113 F.3d 420, 424 (3rd Cir. 1997) (holding

that section 924(c) convictions are not multiplicitous even if

they arise [not only] out of the same criminal episode . . .

[but] out of the same act); Khan, 461 F.3d at 493 (rejecting

argument that it was error for the district court to sentence

the[] [defendants] separately for each separate 18 U.S.C.

924(c) firearms offense because those offenses all related to

the same criminal episode, and holding instead that [as] long

as the underlying crimes are not identical under the Blockburger

analysis, then consecutive section 924(c) sentences are

permissible); United States v. Burnette, 170 F.3d 567, 572 (6th

Cir. 1999) (It is now firmly established that the imposition of

separate consecutive sentences for multiple section 924(c)

violations occurring during the same criminal episode are

lawful.); United States v. Angeles, 484 F. Appx 27, 34-35 (6th

Cir. 2012) ([P]redicate offenses need not occur at different

times in order to support multiple 924(c) convictions. . . .


14

Rather, the fact that each offense requires proof of facts not

required by the other offense appears to be sufficient to show

that the predicate acts are separate.); United States v.

Sandstrom, 594 F.3d 634 (8th Cir. 2010) (holding that multiple

section 924(c) counts were not multiplicitous because the

defendants used the firearm at issue in both counts to commit

separate offenses, even though the offenses occurred

simultaneously); United States v. Beltran-Moreno, 556 F.3d 913,

916 (9th Cir. 2009) ([I]f the elements of the two predicate

offenses are different, each may form the basis of a firearm

count notwithstanding that both offenses stem from the same set

of facts.) (quoting United States v. Castaneda, 9 F.3d 761,

765 (9th Cir. 1993)); United States v. Angilau, 717 F.3d 781, 789

(10th Cir. 2013) (holding that multiple section 924(c) charges

were not multiplicitous, even though [t]he factual event

underlying [them] . . . was exactly the same, because the

predicate crimes were separate offenses under Blockburger).

The decisions that have adopted Tsarnaevs reading of the

statute are poorly reasoned and unpersuasive. They all

essentially find that the statute is ambiguous with respect to

the unit of prosecution and that the rule of lenity therefore

requires the most parsimonious interpretation possible. See

United States v. Wilson, 160 F.3d 732, 749 (D.C. Cir. 1998)


15

(concluding that section 924(c) is an ambiguous statute and

the rule of lenity [therefore] lead[s] us to vacate one of

[defendants] section 924(c) convictions.); United States v.

Phipps, 319 F.3d 177, 183 (5th Cir. 2003) ([S]ection 924(c)(1)

is ambiguous, so we apply the rule of lenity and decide that the

statute does not authorize multiple convictions for a single use

of a single firearm based on multiple predicate offenses.);

United States v. Cureton, 739 F.3d 1032, 1043 (7th Cir. 2014)

(adopting reasoning of Wilson and Phipps).

But as we have shown, section 924(c) is not ambiguous: its

language, history, purpose, and the differences between it and

section 924(e) all shed light on its meaning. That leaves no

room for the rule of lenity. As the Supreme Court has

repeatedly explained, [t]he simple existence of some statutory

ambiguity . . . is not sufficient to warrant application of that

rule, for most statutes are ambiguous to some degree.

Muscarello v. United States, 524 U.S. 125, 138, (1998); see also

Smith v. United States, 508 U.S. 223, 239 (1993) (The mere

possibility of articulating a narrower construction [of a

statute] . . . does not by itself make the rule of lenity

applicable). Instead, [t]he rule of lenity applies only if,

after seizing everything from which aid can be derived . . . ,

we can make no more than a guess as to what Congress intended.


16

United States v. Wells, 519 U.S. 482, 499 (1997) (internal

quotation marks and citations omitted); United States v.

Morales, 687 F.3d 697, 701 (6th Cir. 2012)(holding that rule of

lenity [is] a tiebreaker of last resort that is appropriate only

when, after consulting traditional canons of statutory

construction, we are left with an ambiguous statute.); United

States v. Brown, 740 F.3d 145, 150 (3rd Cir. 2014) (same); United

States v. DiCristina, 726 F.3d 92, 104 (2nd Cir. 2013). That is

obviously not the case here.

It would also be inappropriate to apply the rule of lenity

to section 924(c) because Congress, in enacting and amending

that statute, has plainly intended the very opposite of

leniency. The statutes chief purpose, as noted earlier, is to

guarantee prison time for armed offenders. When Congress first

passed it as part of the Gun Control Act of 1968, it created a

penalty that could not be suspended, could not result in

probation, and that increased for a second or subsequent

offense. See Pub. L. No. 90-618, 102, 82 Stat. 1223. In

1971, Congress added the requirement that the sentence must run

consecutively to the sentence for the underlying crime. See

Pub. L. 91644. When the Supreme Court, applying the rule of

lenity, held that Congress did not intend this last requirement

to apply if the underlying crime itself contained a firearm-


17

based sentence-enhancement, see Simpson v. United States, 435

U.S. 6, 12-13 (1978), Congress swiftly amended the statute to

correct that misunderstanding. See Pub. L. No. 98-473,

1005(a), 98 Stat. 2138-2139.

Two years later, in 1986, Congress added a ten-year

mandatory-minimum sentence for use of a machine gun or silencer,

see Pub. L. No. 99-308, 104(a)(2), 100 Stat. 456-457, and in

1988, it replaced the mandatory-minimum sentences for certain

recidivists and for the use of certain types of guns to 20

years, 30 years, and life imprisonment, respectively, see Pub.

L. No. 100-690, 6460, 102 Stat. 4373. After the Supreme Court

held that use of a firearm during and in relation to a drug

trafficking crime did not include the action of a defendant

who puts a gun into place to protect drugs or to embolden

himself, Bailey v. United States, 516 U.S. 137 (1995), Congress

promptly repudiated that lenient understanding of the statute as

well, spelling out that liability extends to anyone who, in

furtherance of . . . [a predicate] crime, possesses a firearm.

See Pub. L. 105386, 1(a)(1). Congress also added a seven-

year mandatory-minimum sentence if the firearm was brandished

and a ten-year mandatory-minimum sentence if it was discharged.

This history makes clear that applying the principle of

lenity to section 924(c) is not an appropriate way of


18

effectuating Congressional intent. In Gore, supra, which posed

the question of whether Congress intended to authorize multiple

punishments for a single sale of drugs, the Supreme Court

rejected the rule of lenity as a guide to determining

Congressional intent. After noting that Congress, over nearly

half a century, had enacted a network of provisions, steadily

tightened and enlarged, for combating drug trafficking, 357

U.S. at 390, the Court concluded: Both in the unfolding of the

substantive provisions of law and in the scale of punishments,

Congress has manifested an attitude not of lenity but of

severity toward violation of the narcotics laws, rendering the

rule of lenity inapplicable. Id. at 391. The same is true of

Congresss attitude toward gun violence, and section 924(c)

should be read accordingly. See Smith v. United States, 508

U.S. 223, 240 (1993) (holding that bartering a gun for drugs

constitutes a use of the gun for section 924(c) purposes in

part because a more restrictive reading of the phrase uses . .

. a firearm would undermine the statutes purpose).

In short, multiple section 924(c) violations based on

separate predicates are not multiplicitous even if they arise

from the same underlying events. But even assuming, for the

sake of argument, that the challenged offenses are

multiplicitous, the proper remedy in this case would not be to


19

require the government to elect among multiplicitous counts

before trial, but rather to require that it do so after trial

(but before sentencing). As the court explained in United

States v. Pires, 642 F.3d 1 (1st Cir. 2011):

There is no inflexible rule that the exclusive remedy for multiplicitous counts is election between them. See Ball v. United States, 470 U.S. 856 (1985). Requiring election is one option, but not the only option; the court may, for example, simply vacate both the conviction and the sentence as to all but one count, essentially merging the offending counts. See, e.g., id.; United States v. Lilly, 983 F.2d 300, 306 (1st Cir. 1992). This flexible approach makes good sense because the Double Jeopardy Clause does not protect against simultaneous prosecutions for the same offense, so long as no more than one punishment is eventually imposed. United States v. Josephberg, 459 F.3d 350, 355 (2nd Cir. 2006) (per curiam).

Id. at 16.

To allow the government to proceed to trial on only one

section 924(c) count, when the several 924(c) counts in the

indictment are based on different predicate offenses, would

needlessly undermine the legislative goal of ensuring that armed

offenders receive the punishment required by section 924(c).

That is because the evidence at trial might prove one predicate

offense but not the others. If the section 924(c) count allowed

to go to trial was linked to a predicate that could not be


20

proved, Tsarnaev would escape a section 924(c) conviction

altogether. The Court should avoid that risk with respect to

any counts deemed multiplicitous by choosing the option

presented in Pires of allowing a trial on all of the section

924(c) and simply vacating any multiplicitous convictions after

trial. This approach would not prejudice Tsarnaev, who makes no

claim that the allegedly multiplicitous counts will prejudice

the jurys deliberations during the guilt-phase of his trial,

only the penalty-phase. See Deft. Mot. at 3.

Counts 24, 26, 28, 30 (the Watertown bombings)

Tsarnaevs multiplicity argument is even less compelling

with respect to the section 924(c) counts predicated on his use

of four separate explosive devices in Watertown on April 19,

2013. Putting aside the arguments legal defects, which are

discussed above, the arguments factual premise is faulty with

respect to these counts, because the Watertown section 924(c)

charges are not based on the same, simultaneous conduct. Each

of the Watertown section 924(c) charges is based on a separate

section 2232a predicate linked to the use of a different

explosive device over a period of 10-15 minutes.

The cases Tsarnaev cites do not support his argument that

these counts are multiplicitous. Pena-Lora involved two section

924(c) violations arising from a single predicate offense, see


21

Pena-Lora, 225 F.3d at 32, and United States v. Johnson, 25 F.3d

1335 (6th Cir. 1994), involved predicate offenses involving

simultaneous possession of different controlled substances, id.

at 1338. To the governments knowledge, no court has ever held

that multiple section 924(c) charges based on separate

predicates, each of which involves the separate use of a

different firearm at a different time, are multiplicitous.

Multiple counts (all of the section 924(c) charges)

Each of the section 924(c) counts charges that Tsarnaev

both used and carried a firearm during and in relation to a

crime of violence and possessed a firearm in furtherance of

a crime of violence. The government submits that these are

alternative means of violating section 924(c) and thus may be

alleged in a single count. See Fed. R. Crim. P. 7(c)(1). We

acknowledge, however, that the Circuits are split on whether

these are in fact alternative means of violating section 924(c)

or separate crimes. Compare United States v. Haynes, 582 F.3d

686, 70304 (7th Cir.2009) (separate means); United States v.

Arreola, 467 F.3d 1153, 1157-1159 (9th Cir. 2006) (same) with

United States v. Woods, 271 F. Appx 338, 343 (4th Cir. 2008)

(separate crimes); United States v. Combs, 369 F.3d 925, 933 (6th

Cir. 2004) (same); United States v. Brown, 560 F.3d 754, 766-767

(8th Cir. 2009) (same); United States v. Brooks, 438 F.3d 1231,


22

1237 (10th Cir. 2006) (same; dicta). The First Circuit

expressly reserved judgment on the issue in United States v.

Ayala-Lopez, 493 F. Appx 120, 127 n.2 (1st Cir. 2012).

We are surprised by Tsarnaevs argument that the section

924(c) counts are duplicitous, i.e. that they join in a single

count . . . two or more distinct and separate offenses. United

States v. Canas, 595 F.2d 73, 78 (1st Cir.1979); for if they are,

then the government is entitled to seek a superseding indictment

that splits each section 924(c) count into separate use and

carry and possess in furtherance of counts, each mandating a

separate mandatory-minimum consecutive sentence. We urge the

Court to hold that the counts are not duplicitous and, as a

precaution, to give an appropriate unanimity instruction at

trial in order to insulate the verdicts from any potential

infirmity. See United States v. Karam, 37 F.3d 1280, 1286 (8th

Cir. 1994) (The principal vice of a duplicitous indictment is

that the jury may convict a defendant without unanimous

agreement on the defendant's guilt with respect to a particular

offense.), cert. denied, 513 U.S. 1156 (1995); United States v.

Pietrantonio, 637 F.3d 865, 869 (8th Cir. 2011) ([A] duplicitous

indictment . . . may be cured by a limiting instruction

requiring the jury to unanimously find the defendant guilty of

at least one distinct act.); United States v. Webster, 231 F.


23

Appx 606, 607 (9th Cir. 2007) (A specific unanimity instruction

may cure duplicity in the indictment.); United States v.

Swantz, 380 F. Appx 767, 768 (10th Cir. 2010) (There is . . . a

simple cure for duplicity. The court can instruct the jury that

it must unanimously agree on one of the alternative charges,

thereby safeguarding the defendant's right to a unanimous

verdict.).

Counts 2, 3, 4, 5 (the section 924(c) counts based on section 2332a counts)

There is no merit to Tsarnaevs argument that the section

924(c) offenses predicated on the use of bombs at the Marathon

are lesser included offenses of those predicates. By

definition, a lesser-included offense does not contain each and

every element of the greater offense, but only a subset of the

elements of the charged offense. United States v. Gray, 2013

WL 6038485, at *18 (11th Cir. 2013) (quoting Schmuck v. United

States, 489 U.S. 705, 716 (1989)). A section 924(c) violation,

in contrast, does include each and every element of the

predicate offense. See, e.g., United States v. Crump, 120 F.3d

462, 466 (4th Cir. 1997) (In accordance with the views of all

the circuits considering the question, we hold that a

defendant's conviction under section 924(c)(1) does not depend

on his being convicted - either previously or contemporaneously


24

- of the predicate offense, as long as all of the elements of

that offense are proved and found beyond a reasonable doubt.)

(emphasis added); United States v. Willoughby, 27 F.3d 263, 266

(7th Cir.1994) (same); United States v. Reyes, 102 F.3d 1361,

1365 (5th Cir. 1996) ([P]roof of the defendant's guilt of a

predicate offense is an essential element of a conviction under

924(c)(1).).

In any event, Congress could not have made it clearer that

section 924(c) creates an offense separate from the predicate

crime, and that a defendant may be prosecuted and punished for

both. Section 924(c)(1)(D) expressly provides:

Notwithstanding any other provision of law. . . no term of

imprisonment imposed on a person under this subsection shall run

concurrently with any other term of imprisonment imposed on the

person, including any term of imprisonment imposed for the crime

of violence or drug trafficking crime during which the firearm

was used, carried, or possessed. That is true even if the

crime of violence provides for an enhanced punishment if

committed by the use of a deadly or dangerous weapon or device.

18 U.S.C. 924(c)(1)(A), As the Second Circuit has explained,

while the commission of a crime of violence . . . is a

necessary predicate for a conviction under section 924(c) . . .

we cannot consider the underlying violent felony to be a


25

lesser offense. . . . [because] Congress obviously did not

intend the crime of violence to be merged into the firearm

offense. United States v. Khalil, 214 F.3d 111, 120 (2nd Cir.

2000).

Although Tsarnaev appears to believe it is unfair to

sentence him for both a section 2332a violation and a

corresponding section 924(c) violation, Congress obviously did

not share that belief. Indeed, in the same bill in which

Congress enacted section 2332a, Public Law 103-322, Congress

substantively amended section 924(c), see id. 110510(b),

110102(c)(2), 110105(2), but it did not see fit to exempt

section 2332a (or any other crime of violence) from its ambit.

CONCLUSION

WHEREFORE, the government respectfully requests that the

Court deny Tsarnaevs Motion to Dismiss in its entirety.

Respectfully submitted,

CARMEN M. ORTIZ United States Attorney

By: /s/ William D. Weinreb

WILLIAM D. WEINREB ALOKE S. CHAKRAVARTY NADINE PELLEGRINI Assistant U.S. Attorneys


doc 223; govt opposition to defendant's motion to dismiss 031414

Documents

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number of charges

dzhokhar tsarnaev tsarnaev

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